Keith Mack
In the United States, the majority of criminal laws are written by state governments. This is due to the Tenth Amendment, which grants states the police power to legislate for the health, safety, and welfare of their citizens. The federal government also enacts criminal laws, but its jurisdiction is typically limited to federal offenses or crimes that cross state lines. The US Constitution designates the states as the primary regulatory authority, with the federal government deriving its authority to create law from Article I, § 8, which discusses the federal Congress's exclusive or delegated powers.
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What You'll Learn
Federal vs. State criminal law
Federal and state criminal law differ in several key ways, including the legislative bodies that enact them, the types of offences they cover, the agencies responsible for their enforcement, and the severity of penalties attached to them.
Federal criminal laws are enacted by Congress and are outlined in the United States Code. These laws address federal or national issues, such as crimes that occur across state lines, internet crimes, federal tax fraud, crimes committed on federal property, and counterfeiting US currency. Federal crimes are investigated by federal law enforcement agencies, including the FBI, DEA, ICE, Secret Service, Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Homeland Security, and the Securities and Exchange Commission. Federal crimes are prosecuted by Assistant US Attorneys, and trials are held in federal district courts.
State criminal laws, on the other hand, are enacted by state lawmakers and are outlined in state criminal or penal codes. These laws cover a broader range of offences, including violent crimes such as assault, rape, and murder, as well as burglary, domestic violence, DUIs, traffic offences, and felonies. State crimes are investigated by local law enforcement agencies, such as county sheriffs, state agents, or local police officers. State district attorneys or city attorneys prosecute state crimes, and trials are held in state courts within the jurisdiction where the crime was committed.
One significant difference between federal and state criminal law is the severity of penalties. Federal charges often carry harsher penalties than state charges because federal or national interests are at stake. However, it's important to note that the penalties depend on the exact offence, and federal charges do not always result in more severe consequences.
Another distinction between federal and state criminal law is the court system. For federal crimes, there are three levels to the court system: district court, court of appeals, and the Supreme Court. In contrast, state crimes are handled within the state court system, which may include superior courts or other specialised courts within that state.
While most crimes fall under state jurisdiction, there are instances where a crime can be tried in both state and federal court if it violates both state and federal law. This is known as the "separate sovereign" exception to the Double Jeopardy Clause, which prohibits trying an individual twice for the same crime. In such cases, federal law takes precedence over state law according to the supremacy clause in the US Constitution.
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The Tenth Amendment
> "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In the 19th century, Chief Justice John Marshall's landmark opinion in McCulloch v. Maryland rejected the idea that the Tenth Amendment denied implied or incidental powers to the federal government. Instead, he adopted an approach focused on the larger constitutional context. In the early 20th century, the Court relied on the Tenth Amendment to strike down various economic regulations as invasive of the police power reserved to the states.
In the US, the federal government and each state have their own criminal codes, which define specific crimes and their degrees. Criminal law is generally defined by statutes, with crimes classified based on severity. While the federal government and states both enact criminal laws, federal criminal law stands alone from each state's criminal law.
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Federal government jurisdiction
In recognition of this issue, the White House has taken steps to ease the regulatory burden on Americans. These efforts aim to prevent individuals from being criminally penalized for violating regulations they could not reasonably be expected to know. This approach prioritises criminal enforcement for those who knowingly or willingly choose to violate regulations, causing or risking substantial public harm.
Agencies are encouraged to consider civil or administrative enforcement instead of criminal enforcement for strict liability regulatory offenses, as outlined in Jarkesy v. Securities and Exchange Commission. Additionally, agencies are required to explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the applicable mens rea standard—the state of mind necessary for conviction.
To further address this issue, the head of each agency must provide a report to the Director of the Office of Management and Budget (OMB). This report includes a list of all criminal regulatory offenses enforceable by the agency or the Department of Justice, along with the potential penalties and applicable mens rea standards. These reports are to be made publicly available and updated periodically to enhance transparency and accountability.
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State government jurisdiction
State laws are enacted by state legislatures, which are made up of elected representatives from each state. These representatives introduce and debate bills, which, if passed, are then sent to the state governor for approval. The governor can choose to sign the bill into law or veto it. If the bill is vetoed, it is sent back to the legislature for further discussion and revision. This process allows for a check on the power of the state legislature and ensures that laws are carefully considered before being enacted.
State governments also have the authority to regulate and enforce criminal law within their borders. This includes establishing and maintaining law enforcement agencies, such as state police forces, and appointing judges and prosecutors to handle criminal cases. Additionally, state governments can establish criminal procedures and rules of evidence that must be followed in state courts.
In some cases, state laws can be pre-empted by federal laws. This means that if there is a conflict between a state law and a federal law, the federal law takes precedence. However, this does not mean that states cannot enact their own criminal laws; it simply establishes a hierarchy of laws, with federal laws taking priority when there is a conflict.
State governments also play a crucial role in shaping criminal justice policies and practices. They have the authority to set sentencing guidelines, determine the location and management of correctional facilities, and establish programmes for rehabilitation and reintegration. Additionally, state governments often collaborate with local communities and private sector organisations to develop crime prevention initiatives and promote public safety.
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Congress's authority
Congress plays a pivotal role in shaping the criminal justice landscape in the United States. Its legislative powers are extensive and encompass various aspects of criminal law and its enforcement. As the legislative branch of the federal government, Congress has the authority to create, amend, and repeal laws that govern the behaviour of individuals and organisations across the nation. This power extends to defining criminal offences, establishing penalties, and outlining procedures for investigations and prosecutions.
One of the critical functions of Congress is enacting criminal statutes. Through legislative action, Congress identifies and specifies prohibited behaviours, thereby establishing what constitutes a crime. This process involves a thorough examination of societal needs, values, and evolving norms to ensure that the law effectively addresses emerging challenges and protects the public. By passing or amending criminal statutes, Congress provides clarity on the types of conduct that carry criminal consequences.
Beyond defining crimes, Congress's authority extends to setting penalties and sentencing guidelines. This involves determining the severity of punishments for different offences, ranging from misdemeanours to felonies. In doing so, Congress considers the potential impact on individuals, communities, and the broader social fabric. The legislative branch also plays a role in allocating resources and funding for law enforcement agencies, ensuring they have the necessary means to enforce the laws effectively.
Additionally, Congress wields influence over the procedures governing criminal investigations and prosecutions. This includes establishing rules of evidence, admissibility standards, and the rights of accused individuals during the investigative and trial processes. Congress has also enacted laws that govern the operations of federal law enforcement agencies, ensuring they have the necessary tools and guidelines to carry out their duties effectively while respecting the rights of citizens.
Congress's oversight authority further reinforces its role in criminal law. This authority enables Congress to conduct thorough oversight of federal law enforcement agencies, ensuring they operate transparently and accountably. Through this oversight function, Congress can identify areas where legislative reform or intervention may be necessary to improve the effectiveness and fairness of the criminal justice system.
In conclusion, Congress's authority in the realm of criminal law is far-reaching and multifaceted. Through its legislative powers, Congress shapes the very foundation of criminal justice in the United States. By enacting and amending laws, defining offences, setting penalties, and overseeing their implementation, Congress plays an indispensable role in safeguarding citizens, promoting public order, and ensuring the fair and effective administration of justice.
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Frequently asked questions
State governments write the majority of criminal laws in the United States. This is due to the Tenth Amendment, which grants states the police power to legislate for the health, safety, and welfare of their citizens.
Federalism, as set forth in the US Constitution, divides governmental power between the federal government and each of the states. This prevents a concentration of power in one individual or small group of individuals.
Congress is the law-making branch of the federal government. It is the only part of the government that can make new laws or change existing ones. Congress can also override a presidential veto by a two-thirds vote in both the Senate and the House of Representatives.
Federal criminal laws typically deal with crimes that have a nationwide impact, such as drug trafficking, immigration offenses, and crimes committed on federal property. They also regulate commerce and economic activity that crosses state lines, such as transportation and the internet.
Many actions can be considered both federal and state crimes. For example, drug offenses may be prosecuted by both state authorities and under federal law without violating double jeopardy protections.
